Board backlog a symptom of inaction on worker safety

This April 18, 2013, file photo shows an aerial view of the remains of a fertilizer plant and an apartment complex to the left, destroyed by an explosion in West, Texas, that killed as many as 15 people and injured more than 160.

AP Photo
The U.S. Chemical Safety Board has yet to complete an investigation of the December 2010 explosion and fire that killed three workers at AL Solutions in New Cumberland, W.Va.

AP Photo
In this April 21, 2010, file photo, the Deepwater Horizon oil rig burns in the Gulf of Mexico, more than 50 miles southeast of Venice on Louisiana's tip.

CHARLESTON, W.Va. -- When a series of leaks at the DuPont Co. plant in Belle left one worker dead in January 2010, local political leaders pushed for an investigation by the U.S. Chemical Safety Board.

Agency investigators already were looking into a fatal explosion two years earlier at the Bayer CropScience facility in Institute. Sens. Robert C. Byrd and Jay Rockefeller, both D-W.Va., publicly pressed for the board to deploy a team to DuPont also.

CSB officials agreed, but board member William E. Wright warned at the time that the DuPont probe would delay efforts to complete other investigations, including the one at Bayer. At the time, the CSB had 17 open investigations, the largest number in agency history.

Within months, the workload would get even worse. CSB deployed when seven workers died April 2, 2010, at the Tesoro Refinery explosion in Anacortes, Wash.

Weeks later, again under pressure from Congress, the board launched a probe of the April 20 Deepwater Horizon oil rig blowout that killed 11 workers and caused a massive oil spill in the Gulf of Mexico.

Since then, a tragic list of other industrial disasters and near-disasters has been added to the board's docket: an ammonia leak at an Alabama warehouse and distribution center that sent 130 residents to the hospital; a California refinery fire that prompted 15,000 plant neighbors to seek medical attention; the massive explosion at a West, Texas, fertilizer plant that killed 15 people, injured hundreds, and flattened part of the town; and a Louisiana plastics plant explosion that killed two workers.

Today, the board is under fire for a backlog of unfinished investigations. The agency's Inspector General wrote a tough report alleging mismanagement. Lawmakers questioned why investigations of workplace accidents in their own districts drag on uncompleted.

Longtime advocates for improved safety and environmental protections at the nation's chemical plants and other industrial facilities, including some who have closely watched the board for years, say the CSB's problems are really just a symptom of broader troubles and misplaced national priorities -- of frequent indifference to worker safety and public health issues by the political system.

The board remains a tiny federal agency, with just 43 employees and an annual budget of only $10.5 million. Promised increases in funding aimed at helping with the massive Deepwater Horizon probe and adding a fourth investigation team never materialized.

"The CSB's leadership, past and present, has to take some responsibility for biting off more than it can chew in adding more investigations to its platter, but its motives for doing so are noble," said Celeste Monforton, a public health researcher, worker safety activist, and former Labor Department staffer. "It is the only federal agency charged with making recommendations to help prevent worker fatalities and injuries, and its size reflects larger disinterest in worker health and safety problems."

Indeed, the board's budget has remained relatively flat over the last five years. The Obama administration has never asked for any significant new money to help -- let alone expand -- the agency. The five-member board remains two members short, with one Obama nomination still awaiting Senate confirmation and another slot not yet filled by the White House.

"We'd like for the CSB to do more in the way of investigative capacity and also recommendations for improving things," said Rick Hind, who follows chemical plant safety issues for Greenpeace. "But I find it hard to bash too hard on them as an agency. They've had to basically triage which accidents they will investigate."

Modeled after the National Transportation Safety Board, the CSB has no real regulatory authority. It doesn't write safety rules, issue citations or levy fines. Instead, board officials investigate industrial accidents and make recommendations to industry and government for making plants safer for workers and nearby residents.

Early legislative proposals called for the CSB to have an annual budget of about $12 million, about half of NTSB yearly spending at the time. Now, lawmakers give the CSB just one-tenth of what is appropriated every year for the NTSB. And while Congress created the chemical board as part of the 1990 amendments to the federal Clean Air Act, inaction on appointments and budget appropriations delayed its becoming operational until 1998.

As a result, the board has over the last 15 years been periodically criticized by government auditors, labor organizations and environmental groups, usually not so much for what it does, but for what it doesn't do.

For example, the CSB has not used its legal authority to write regulations to set up a new system to require chemical accidents to be reported to the board. And the board has never come close to fulfilling its legal mandate to investigate and report on "any accidental [chemical] release resulting in a fatality, serious injury or substantial property damages."

In both instances, the board has cited the staffing constraints caused by limited congressional financial support.

"The board feels the agency has responded to its understanding of current congressional intent and has utilized the limited resources available for its mission," the CSB said in response to a 2004 Inspector General's audit.

Last month, a new IG report harshly criticized management of the board, noting especially that the agency "has steadily fallen behind in accomplishing its objective related to timeliness" of its investigations.

In 2007, the board completed 10 accident investigations, which was its goal for that year. Last year, the agency finished just two probes, compared to its goal of eight investigations for the year.

The IG report, which covered data through May 2013, listed six unfinished investigations that have been open more than three years. It did not include Deepwater Horizon, the Tesoro Refinery, or the uncompleted investigation of a July 2010 explosion and fire that killed two workers at the Horsehead Holding Co. zinc recycling facility in Monaca, Pa.

In all, the board lists 15 pending investigations that involved the deaths of 27 workers and one member of the public.

"Closing its backlog would allow the CSB to provide to the community and other stakeholders its findings and recommendations, which would help reduce the occurrence of similar incidents and results in the protection of human health and the environment," said the 43-page IG report issued July 31. "Closure would also provide more time for investigative management to focus on recent and new incidents."

Daniel Horowitz, the board's managing director, said the agency's actual count of unfinished investigations is likely much higher. Over the years, accident investigations were dropped for a variety of reasons, ranging from workload to missing evidence to legal challenges that delayed fieldwork. And it's impossible to predict the timing or scope of industrial accidents that can quickly shift agency priorities.

"It's been a consistent part of the process," Horowitz said. "There's such a large amount of unpredictability in the work. You have to balance the workload."

The IG report complained that the board has not identified a specific period of time for completing investigations, but also noted that teams are often interrupted during a probe to be deployed to another -- often at the request of Congress or "other external stakeholders" -- adding to delays.

Government auditors have in the past also criticized the board for not doing more to spell out how it would prioritize which accidents the agency will -- and won't -- investigate.

In West Virginia, the CSB has been praised by citizen groups and some elected officials for its detailed reports on the Bayer explosion in 2008, the DuPont incidents in January 2010, and a 2008 propane explosion that killed four people at a Raleigh County convenience store.

But among the investigations the CSB has never completed is a probe of a December 2010 explosion and fire at AL Solutions, a small metals recycling plant in West Virginia's Northern Panhandle. Two brothers, Jeffrey Scott Fish and James Eugene Fish, and a third worker, Steven Swain, were killed in the incident along the Ohio River in New Cumberland, Hancock County.

Last week, CSB spokeswoman Hillary Cohen told the Gazette-Mail that the team working on the AL Solutions probe is now assigned full-time duty investigating the April fertilizer plant explosion in West, Texas.

"Obviously, this is a very time- and resource-intensive investigation and the team has not been able to work on AL Solutions," Cohen said in an email message. "We have not dropped the case, but I don't have an answer to give you regarding the completion."

Horowitz traces much of the board's backlog problem to taking on the Deepwater Horizon investigation, a massive and complex probe where the board has faced legal challenges questioning its very authority to get involved in the first place. Board members asked Congress for an additional $5.6 million for Deepwater Horizon alone. But the CSB lost even the additional $2 million promised by the Senate when lawmakers opted to fund 2011 government operations through a series of continuing resolutions, rather than an actual budget bill.

In a prepared response to the IG audit, the CSB's official position was to insist the agency's productivity has not declined.

"Operating within the constraints of static or reduced budget, the CSB nonetheless believes that the investigation reports that have been issued in the past five years constitute some of the most important work the agency has done," the board said.

But in a budget request report to Congress, the board offered a more straightforward explanation of the situation the agency faces.

"In recent years, serious resource constraints have created a backlog of open major accident investigations and prevented the CSB from investigating more than a small percentage of the most serious incidents each year," the budget request said. "The CSB continually tracks and monitors high consequence chemical incidents that result in deaths, hospitalizations, property damage in excess of $500,000, large evacuations, and/or off-site damage. CSB staff recorded an estimated 282 incidents in 2011 and 334 incidents in 2012."

Board members asked for nearly $11.5 million for the new budget year that starts Oct. 1. That's an increase of about $1 million over the current year, which was cut along with other federal spending by the budget sequestration.

"The CSB must maintain its current level of operations or risk an increased backlog and the inability to take on emerging safety concerns throughout the industry," the board said in its request.

And during a Senate hearing in June, board Chairman Rafael Moure-Eraso warned lawmakers, "the CSB has no capacity beyond this point to undertake any new investigative work, beyond what has already been promised and begun."

Currently, the Democrat-controlled Senate is proposing to meet the CSB's request. The Republican-controlled House wants to give the agency $8.96 million.

In West, Texas, the CSB has been hampered by a problem that has come up repeatedly in the past: Other agencies, including the Justice Department's Bureau of Alcohol, Tobacco, Firearms, and Explosives and the Texas State Fire Marshal's Office refused the board access to the accident site and to key witnesses.

On Aug. 1, President Obama issued an executive order that created a new "working group" of various agencies to examine a variety of chemical plant safety issues. Among other things, the group is charged with examining interactions between the CSB and other agencies, to try to clear up these sorts of problems.

Moure-Eraso praised the president's action, saying, "increased coordination, communication, and data collection amongst federal, state, tribal and local agencies should result in action and assist community members and emergency responders in helping to prevent and respond to chemical incidents." Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.